) 7 Clark v. Office of Personnel Management

F Elgin V, Supp
2009 unpublished
an employee of the Federal Deposit Insurance Corporation (FDIC) for 17 years, was forced to resign [amidst threats of dismissal] once Selective Service investigators discovered that he failed to register for Selective Service when he was 18 1. Such a failure disqualifies the violator from federal employment, government benefits and penalties of $250,000 and up to five years in prison. The issue is whether mandatory registration for Selective Service is unconstitutional and whether Tucker can be
more » ... rightfully forced to resign due to statues that became effective after he was an employee. The Military Selective Service Act (MSSA) 2 requires that males present themselves for registration with the Selective Service System between the ages of eighteen and twenty-six. There is also a separate federal statute, which states that men who deliberately fail to register under the MSSA are disallowed for employment by a federal executive agency 3. When that employment standard was imposed, it was no longer possible for Tucker to register with the Selective Service System. Therefore he was effectively in retroactive violation. Research shows that courts examine a variety of factors to what the intent to register consists of, including (1) the employment bar imposed by § 3328 4 as an unconstitutional bill of attainder and (2) that the MSSA targets men specifically, but not women, which violates the equal protection of the Constitution. The first factor examines the employment bar imposed by § 3328 5 as an unconstitutional bill of attainder, which benefits Tucker's claim of being unjust because that legislation specifically punishes men. When an individual seeks federal employment under the MSSA, they cannot justly be denied a right under federal law for failing to register if "the person shows by a preponderance of the evidence that the failure was not a knowing and willful failure to register." 6 When an individual applies for a position within the executive agency of the Federal Government the Office of Personnel Management (OPM), it must find that the individual's failure to register "was neither knowing nor willful." According to Clark v. Office of Personnel Management 7 , the burden of proof is on the applicant but this burden is not easily refutable.